Papinianus, Opinions, Book VII. The owner of an estate left to an usufructuary by will the interest which the latter had therein by way of usufruct, and this estate the legatee, after having had possession of it for a time, was compelled to surrender to the son of the testator, who had successfully conducted a case of inofficious testament; and it was apparent from what subsequently occurred that the right of usufruct remained unimpaired. 1Where the crops from certain tracts of land were left under a trust for the maintenance of freedom, and any of the parties who are entitled to the same die; the profits of their shares revert from them to the mere owner of the land.

Papinianus, Opinions, Book VII. Where the use of a house is left, security must be furnished which would be satisfactory to a good citizen; nor does it alter the case if the father wishes his sons, who are his heirs, to reside in the house with his widow, who is the legatee.

The Same, Opinions, Book VII. Where the father of a family, in devising land to his respective heirs, wished to act the part of an arbiter in the partition; one co-heir will not be compelled to surrender his share unless he obtains in return for the same a share which is free from the incumbrance of the pledge.

The Same, Opinions, Book VII. Where horses have been left in trust, after default, the first foal must be furnished as profit, but a second one as accessory, just as in the case of the offspring of a female slave.

The Same, Opinions, Book VIII. Where a ward, who has more than one guardian, forbids one of them, who is insolvent, to render an account; this does not act as a release of the others with reference to what he, fraudulently, may have collected, or contracted for during the guardianship, and his fellow-guardians who neglected to denounce him as suspicious can legally be sued on the ground of negligence; for a testamentary guardian is not liable for negligence from which he was released by the will.

Papinianus, Opinions, Book VII. A codicil which precedes a will is not valid unless confirmed by the will or by a second codicil subsequently executed, or where its provisions are established by some other expression of the intention of the testator; but any different dispositions that the deceased may subsequently make shall not stand.

The Same, Opinions, Book VII. Where a son brought suit on the ground of an inofficious testament of his mother, before different tribunals, and various decisions of the judges were rendered, the heir who defeated the son will not be entitled to the preferred legacies, at least for the shares which the son would have obtained from the other co-heirs, any more than the other legatees would be entitled to any actions against the son; but it was decided that the grants of freedom conferred by the will should be carried out, since the son had partially broken the will of his mother. This rule should not be applied to servitudes, which cannot be partially diminished. It is evident that a servitude must be entirely demanded from the party who defeated the son, but only the appraised value of a portion of it need be paid; or, where the son is ready to transfer the servitude, if the price is paid, the legatee will be barred by an exception on the ground of fraud, if he does not tender the appraised value of a portion of the same, just as in the case of the Falcidian Law. 1“I bequeath to Lucius Sempronius the entire estate of Publius Mævius.” In this instance, Sempronius will only be liable for the burdens imposed upon the estate of Mævius, and which continued to exist until the death of him who became the heir of Mævius; just as rights of action are assigned instead of loans which could be paid. 2Ad Dig. 31,76,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 200, Note 3.The owner of land, the usufruct of which had been left to an heir, bequeathed it under a certain condition. The terms of the will did not permit the heir to retain the profits, on account of the usufruct. A different opinion is held with reference to certain servitudes attaching to land to which servitudes the heir was entitled, since he obtains the profits as a portion of the land. 3“Let my heir give to Titius what is due to me under the will of Sempronius.” As the legatee, who was also a testator, had previously taken advantage of the law of novation, the legacy was not payable under the will; and it was held that the false representation did not injure the legatee, and that what, in the first place, was true, could not be considered as entirely false. 4Where a slave is manumitted unconditionally, but cannot obtain his freedom as soon as the estate is entered upon on account of some legal impediment, and because his condition is not established, or for some additional reason, for example, an accusation of adultery, he cannot expect to receive either legacies or the benefits of a trust absolutely granted by the same will, because the time has passed when he could take advantage of them. 5A father, having appointed his daughter heir to half of his estate, made the following provision in his will: “I ask that when you die, even though you should have other children, you will leave a larger share of your estate to Sempronius, my grandson, in honor of my name which he bears.” The daughter seems to be necessarily compelled to give, in the first place, equal portions to all the grandchildren, but she has the choice of fixing the larger amount which her father desired to be bestowed upon one of his grandsons. 6A mother, without having observed the proper formalities, appointed a guardian for her son, and bequeathed him a legacy, on condition that the guardian should consent to be confirmed by the decree of the Prætor. If the Prætor does not consider him a suitable person, he will, nevertheless, not be denied an action for the recovery of the legacy. 7Where anyone has furnished the Mucian bond to provide against his doing anything forbidden by the testator, and afterwards commits such an act, he must also surrender the profits of the legacy which, in the beginning, he promised to return. 8A legatee cannot make use of several actions at the same time, because a legacy cannot be divided into several parts. For as a legacy is not bequeathed with the intention that the legatees may avail themselves of several actions, but, in order that it may be easier for them to bring suit, they can do so by selecting whichever action they please. 9The power is granted to recover a legacy from the legatee after it has been paid in compliance with the terms of the will, where the latter is decided to be void, when it is known that the memory of the deceased has become infamous; especially if the testator was convicted of treason after the legacy has been paid.

Papinianus, Opinions, Book VII. Where a tract of land was devised to a daughter as a preferred legacy, “Together with what is due from the stewards and tenants,” the legacy of the residue includes what remains of the rents of the lands under the same lease. Otherwise, it could readily be established that rent collected from the tenants and money deposited in the account-book of the testator in the same place, would not form part of what was left, as being due from either the tenant or the stewards, even though the testator may have expressly stated that he desired the stewards to belong to his daughter. 1It was decided that where the following words are employed, “I give to Lucius Titius such-and-such lands, with the house, in the same condition as they may be found at the time of my death,” the farming implements, and all articles for the use of the house must be delivered under the terms of the legacy; but anything which is due from the tenants will not be included. 2A father bequeathed to his son a factory used for dyeing purple, together with the slaves appointed to conduct the business, and the purple cloth which was there at the time of his death. It was decided that neither the money obtained from the sale of the cloth, nor what was due from purchasers, nor any debts of the slaves were included in the legacy. 3“I give and bequeath to Titius the Seian Estate in the same condition as when I purchased it.” As the Gabinian Estate had also been purchased with the other for a single price, I gave it as my opinion that the mere proof of the purchase was not sufficient, but that it must be ascertained from the letters and accounts of the testator whether the Gabinian Estate was included in the name of the Seian Estate, and whether the income of both of them had been united and carried on the books as that of the Seian Estate. 4It has been established that where a house is bequeathed, the baths constitute a part of the same. If, however, the testator permitted public access to them, the baths will form a part of it only when they can be entered through the building itself, and where they have sometimes been used by the head of the household, or his wife; and the rent of the baths has been carried on the books of the testator along with that of other rooms in the house; or where both have been purchased or furnished with money paid out at the same time. 5A certain person who owned a house bought an adjoining garden, and afterwards devised the house. If he purchased the garden on account of the house, in order to render the latter more pleasant and healthy, and there was an entrance to it through the house, and the garden was an addition to the latter, it will be included in the legacy of the house. 6Under the term “house” is also understood a building joined to the same, if both were purchased for one price, and it is established that the rents of both were carried together on the books.

Ad Dig. 33,1,9Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 656, Note 1.Papinianus, Opinions, Book VII. A tract of land, which a testator desired to be hypothecated to secure legacies payable annually to his freedman, can be lawfully claimed by them on the ground of a trust, for the purpose of preserving the land. Paulus states that this rule also applies to other property belonging to an estate, to enable the legatee to be placed in possession of the same.

Ad Dig. 33,2,24Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 204, Note 7.Papinianus, Opinions, Book VII. Where a legacy of the usufruct of property is bequeathed to a wife, the principal, as well as the interest which the deceased loaned, must be paid after security has been furnished in accordance with the terms of the Decree of the Senate. Therefore, it will be necessary for the interest of the notes which formed part of the assets of the estate, and were due before security was given, to be deducted from the bond. The same rule, however, will not be observed where the money was loaned on the notes by the heir himself; for in this case, only the principal must be paid to the legatee, or whatever interest is found to be due on account of default of payment, and with reference to which no security will be required. 1“I wish my slave, Scorpus, to serve my concubine Sempronia.” In this instance, not the ownership, but the usufruct of the slave is held to have been bequeathed.

The Same, Opinions, Book VII. A father left a house to his daughter, and gave her access to it through other buildings belonging to the estate. If the daughter resides in the house, the right of access will also be granted to her husband; otherwise, it will not be considered as granted to her. If, however, anyone should assert that this right is not merely a personal privilege, but a complete bequest of a servitude, then the right can only be transmitted to the heir. But, in this instance, such a conclusion can, under no circumstances, be admitted, lest what was granted through affection for his daughter might seem to be transmitted to foreign heirs.

The Same, Opinions, Book VII. A man bequeathed a sum of money, in lieu of her dowry, to his wife, who had brought him her dowry in slaves. The slaves having died during the lifetime of the husband, his wife died after he did. The right of action to recover the legacy will pass by law to her heir, as the will of the husband must be executed.

Papinianus, Opinions, Book VII. Where a father, after having appointed several of his children his heirs, bequeathed to two of them, as a preferred legacy, the property of their grandmother, in addition to their shares of his own estate; it was held that the legatees would be entitled to equal shares in proportion to those of the co-heirs. 1Gifts of land, when the implements for its cultivation, called envykai in the Greek language, are not left with it, are not delivered to the devisee.

Papinianus, Opinions, Book VII. Where a master wishes to manumit his slave, and directs him to furnish him with a list of the property of which his peculium is composed, and, after doing so, the slave receives his freedom, it is evident that any property belonging to the peculium which the slave had withheld from his statement will not have been tacitly given to him when he was manumitted. 1Where freedom is granted by a will, and the testator also bequeaths the peculium, and afterwards manumits the slave, the freedman can, under the terms of the will, demand that the rights of action for claims belonging to the peculium shall be assigned to him. 2A son under paternal control, to whom his father bequeathed his peculium, manumitted a slave who formed part of the same, during the lifetime of his father. This slave became the common property of all the heirs, and was removed from the peculium on account of the intention of the son, because that part of the peculium only belongs to the legatee which is found to be included in it at the time of the father’s death.

Papinianus, Opinions, Book VII. Where a bequest of household goods is made, and the description of the articles is, through ignorance, set forth with unnecessary minuteness, it does not affect the general legacy. If, however, the number of the articles specified is stated, the amount is understood to have been reduced with reference to the kind of household goods referred to. The same rule shall be observed where land with all its equipment is devised, and a certain number of different kinds of implements are mentioned. 1It is well established that tables of every kind of material (for instance, those of silver or inlaid with silver) are included in household goods. The custom of the present age classes silver bedsteads and silver candelabra among household goods; for, as Homer says, Ulysses ornamented with gold and silver a bedstead made of the trunk of a green tree, by which Penelope recognized her husband. 2Where a testator bequeathed all of his household goods, certain silver plate which had been received by way of pledge was not held to be included, because he only bequeathed his own effects, especially as the said silver plate had not been used by the creditor, with the debtor’s consent, but he had put it aside as security for the payment of the obligation, to be returned when the latter was discharged.

Papinianus, Opinions, Book VII. It has been decided that where the principal of a sum of money, intended for the support of freedmen, has been left as a preferred legacy to one of several heirs, in accordance with the will of the deceased, he cannot be compelled to give security to deliver to his co-heirs the shares of any of the freedmen who may die. Therefore, in this instance, no action on the ground of money not due will lie, nor will a prætorian action be granted, even after the death of all the freedmen. The case is different, however, where the heir has been directed to make a distribution of the legacy; for this matter only requires momentary attention, but the necessity of furnishing support extends over months and years, and is also a source of trouble to the party responsible for it.

The Same, Opinions, Book VII. An agent from whom the heir was forbidden to require an accounting, and whom he was also charged to release from all liability for any act performed in that capacity, can still be required, by an action on mandate, to pay to the heirs all the money that may be due to him from a banker under a contract which he entered into as an agent, or to assign his rights of action against the said banker.

The Same, Opinions, Book VII. A father, having divided his property among his children, desired that his daughter should receive the sum of three hundred aurei, derived from the profit which he obtained from the advantages he enjoyed as the chief Centurion of the Triarii; and he afterwards used this money in acquiring a tract of land. Notwithstanding this fact, the brothers and co-heirs of the sister will be still obliged to execute the trust, for what was used for the benefit of the testator could not be held to have been consumed. But, as he had apportioned his property among his children, he intended that anything which had not been divided should belong to them in common; and hence it was decided that the land which had been acquired by means of funds derived from the office in the army should also be divided, so that the daughter might receive her share of the estate out of the amount paid for said land. This also would be the case, if money had been included in the assets of the estate.

Papinianus, Opinions, Book VII. A testator left the Mævian, or the Seian Estate to Titius. As several tracts of land were mentioned in the records under the name of the Mævian Estate, I answered that it did not appear that the deceased intended all of said tracts to be included in the devise, provided the value of the Seian Estate did not greatly differ from that of the Mævian Estate.

The Same, Opinions, Book VII. A grandmother who had appointed her grandson heir to a certain portion of her estate, on condition that he should be emancipated, afterwards inserted the following in a codicil, “I also devise such-and-such lands to my grandson, in addition to what I have already left him as my heir.” It was held that the condition of emancipation was repeated, although the grandmother had made no substitution either with reference to the legacies, or the estate. For indeed where a slave was bequeathed his freedom absolutely, but was appointed an heir under a certain condition, and if he should not be the heir, he was directed to receive a legacy, the Divine Pius stated in a Rescript that his grant of freedom should be considered as repeated in the legacy. 1The Mucian bond does not apply, if payment of the legacy is deferred by some other condition. 2“Let my heir pay a hundred aurei to Titius, if my wife does not marry again.” Titius was charged to pay the money to the same woman under the terms of a trust. If the woman should marry, she can demand the execution of the trust on the day when the legacy is payable; and if she is excluded from the benefit of trust, the legatee will not be entitled to security such as the Mucian bond. 3A father appointed guardians for his daughter whom he had disinherited, and directed them to begin to transact the business of their ward, if her mother should die before the girl reached the age of puberty; and he charged his wife, at her death, to pay to their common daughter a million sesterces. The guardians are not considered to have been appointed under a condition, so that, if, in the meantime, the girl should have acquired any other property, they will not be prevented from administering it. The bond to be executed for the performance of the trust was not required of the mother, and that to be exacted from the heirs to secure the payment of the legacies, or the execution of the trust, can be remitted by any indication whatsoever of the wish of the deceased. Therefore, if the condition not to demand a bond is prescribed in the case of a legacy or a trust, this fact does not render them conditional; for if any of the parties should desire a bond to be furnished, and one is not executed, the condition will not fail, for, at present, under the public law, the heir cannot be compelled to furnish a bond against his will, after it has been decided that he can be excused from giving one.

The Same, Opinions, Book VII. A testator bequeathed two hundred aurei to Titia, if she should not marry, and a hundred to her if she should. The woman married. She can claim the two hundred aurei, but not the other hundred; for it would be absurd for her to be considered a widow and a married woman at the same time.

Ad Dig. 36,1,58Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 289, Note 14.The Same, Opinions, Book VII. A father wished that his daughter, after having reserved certain articles, should deliver his estate to her brothers. It was decided that the daughter ought to be placed in possession of the estate, before she made the transfer to her brothers. If, in the meantime, the brothers should have sold or encumbered all the property of the estate, and it was afterwards transferred to them, it is established that, on account of their act only, the sales or pledges of that portion of the estate which was not reserved, should be confirmed.